Just when we are rightly celebrating the fiftieth anniversary of the March on Washington and the passage of the Civil Rights Act of 1964 — what historians call the “signature achievement” of the Kennedy-Johnson administrations — that law has been gutted. Federal judges from trial courts to the Supreme Court have interpreted the Civil Rights Act virtually, although not entirely, out of existence. This is so across judicial philosophies, across the political spectrum and even across presidential appointments.
Consider the case of the Todds, African Americans who sued the Whortons, the white owners of the club where they worked for creating a racially hostile environment. The defendants moved for summary judgment — a dismissal without a jury trial. Obliged by law to consider the facts in the light most favorable to the plaintiffs, the judge found the following: Mr. Whorton directed the N-word at the plaintiffs on multiple occasions. He called a staff meeting about his use of the N-word, explaining he was too old to change the way he spoke and inviting anyone who did not like it to quit. He made other comments such as:
What do your people want? When this was a white club, my customers used ashtrays. Ever since the n—–s have been in the club, the cigarettes have been put out on the floor. The difference between blacks and n—–s is that n—–s put their cigarettes out on the floor.
He complained to Mr. Todd that he could not trust African Americans, saying, “Look at me! I know you don’t like this–n—–s don’t appreciate s–t.”
But to a federal court in Georgia, this wasn’t enough. No reasonable jury, the court held, could find a hostile work environment. Case dismissed. And in language that the marchers on the Mall fifty years ago would have found shocking, the court added, “The facts simply show that the Whortons are racist, bigoted, and/or offensive people,” but not that they created a workplace hostile to their African American employees. “In fact, none of these incidents went beyond the ‘ordinary tribulations of the workplace.'”
Racist comments in the workplace had been “ordinary” and “commonplace” when the Civil Rights Act was enacted. That’s why the law was passed. Perhaps social norms have changed in the decades since 1964; perhaps language once wholly unacceptable has become regular currency. But that is why the Act requires a representative jury to hear these claims, not a judge whose last employment in the private sector may have been decades ago and who — in looking at the federal bench’s composition — was likely to be white, male and either a former partner in a big firm or a former prosecutor.
It is not just racist speech that is acceptable; so is sexist speech. Courts trivialize sexist comments as “stray remarks” and dismiss the cases. Comments from one defendant, who said, “F—–g women. I hate having f—–g women in this office,” were held not to be direct evidence of discriminatory intent. Another defendant supervisor repeatedly referred to a plaintiff as, among other things, a “dumb shit,” “whore,” “stupid bitch” and “hooker,” yet the court dismissed the case as “general vulgarity that [the law] does not regulate.”
Aberrant decisions, you might say? Not so. Amanda Farahany from the Atlanta law firm Barrett & Farahany commissioned a study of 2011 and 2012 summary judgment orders in employment discrimination cases in the Northern District of Georgia, containing Martin Luther King Jr.’s birthplace. Of the 181 cases where the plaintiff had counsel, the Court dismissed 94 percent of them at least in part, and 81 percent in full. Racial hostile work environment claims were dismissed 100 percent of the time.
The Georgia results mirror the results nationwide. 60 percent of motions for summary judgment are granted in general, but in employment discrimination cases, the court dismisses from 70 to 95 percent of the cases.
Women, minorities, people over forty and the disabled bring discrimination cases only to lose in overwhelming numbers. So little do the judges think of discrimination claims that they rarely allow them to get to a jury at all. Federal courts have legitimized practices that would have horrified the early supporters of the Act.
Perhaps the answer is that discrimination is over and we are in the dawn of the post-racial, post-sexist society. The 1964 Civil Rights Act is unnecessary. Or perhaps it’s that, as one former colleague reported, these cases are “often trivial.” The gap between men’s and women’s wages persists, as do the income disparities between men and women, blacks and whites. And the facts of the reported cases — if proved — hardly suggest the claims are trivial.
The federal courts have largely interpreted this important legislation out of existence. Racist speech or sexist comments were not supposed to be part of the “ordinary tribulations” of the workplace. Not now. Not ever.
This article was originally printed on The Huffington Post Blog on November 20, 2013. Reprinted with permission.
About the Author: Judge Nancy Gertner (Ret.) is a former U.S. federal judge who built her career around standing up for women’s rights, civil liberties and justice for all. Named one of “The Most Influential Lawyers of the Past 25 Years” by Massachusetts Lawyers Weekly, Gertner was appointed to the federal bench of the U.S. District Court of Massachusetts by President Bill Clinton in 1994. She retired from the bench in 2011 and now is a professor of practice at Harvard Law School.